The legal saga against One Nation, and legal possibilities against Abbott

April 18, 2013

Margo Kingston: For people interested in the details of the One Nation court saga, the Queensland Crime and Misconduct Commission published a report in 2004. Here we publish its findings on Abbott’s involvement, then my 2003 Webdiary piece on the possibilities for legal action by Hanson and Ettridge and an explanation of champerty and maintenance.

CMC Report into the prosecution of Mr Ettridge and Ms Hanson

Turning to Mr Abbott’s involvement, the Commission wrote to Mr Abbott and asked for
a submission. Having initially informed us that his part in the Hanson litigation was on
the public record, Mr Abbott replied by a letter dated 25 November 2003, which
attached published material relating to his connection with the matter. The
Commission has proceeded on the assumption that the material, in so far it attributes
statements or actions to Mr Abbott, is believed by him to be substantially correct. It
follows that Mr Abbott appears to accept that he established a trust to deal with One
Nation, with funds donated by a number of people whom he named, as well as a
number whom he did not name.

Mr Abbott indicated he would not provide details of the others who made donations
to the trust without an instruction from the Australian Electoral Commission, in
accordance with a provision of the Commonwealth Electoral Act 1918. The CMC has
no authority to pursue this aspect further.

On 3 September 1998 the Australian newspaper published that the trust had about
$100,000 in funds. Mr Abbott has said, in effect, that the trust was not a Liberal Party
organisation and that his purpose was to expose One Nation as a fraud. He also
explained to the media that he had, with the funds raised, supported two separate
legal attempts to shut down One Nation, one being an application made by a Ms
Barbara Hazelton and the other proceedings brought by Mr Sharples. Mr Abbott
appears to have admitted, on one occasion, that he had given a misleading answer to
an interviewer in relation to the matter, to the effect that he had not promised Mr
Sharples money at the outset, to be paid into a solicitor’s trust account; Mr Abbott later
explained that he had taken the interviewer’s question to relate solely to Liberal Party
funds. Mr Abbott said that he had once told Mr Sharples that he had organised pro
bono lawyers that he had organised pro bono lawyers for him and that he had
‘someone’ to cover the costs should they be awarded against him.

As to the criminal proceedings, Mr Abbott denies that he had any connection
whatsoever with them.

Mr Abbott’s activities gave financial support to Mr Sharples’s successful attempt to
establish that the registration of Pauline Hanson’s One Nation was procured by fraud.
The Commission has not been supplied with any evidence to contradict the substance
of Mr Abbott’s account of these events.

It seems clear that eventually Messrs Abbott and Sharples fell out, but the Commission
does not think it necessary to discuss the details of that disagreement. Nor is any
opinion here expressed as to whether, as has been suggested, what Mr Abbott did by
promoting litigation against Ms Hanson amounted to one or both of the two civil
wrongs called maintenance and champerty. That assertion, whether or not it is legally
correct, has no connection with the question whether Ms Hanson was accorded due
process — that depends on the nature of the court proceedings in which she was
involved and whether they were instituted and conducted fairly and with due regard
to her rights. Clearly, Mr Abbott’s conduct could not amount to misconduct within the
meaning of the Crime and Misconduct Act 2001.

In conclusion, the Commission has not found evidence that Mr Abbott’s involvement
in the case extended beyond what is already on the public record and was disclosed
to the Australian Electoral Commission in 1998. His involvement in the matter ceased
prior to the decision by Judge Atkinson to have Pauline Hanson’s One Nation
deregistered and approximately three years’ before any criminal charges were
instituted against Ms Hanson and Mr Ettridge.

It is one thing, however, to wish to counter a political threat. It is another to actively promote and assist in legal proceedings to that end. Mr Abbott is not entitled to lie later about his involvement in this activity, whether to the media, a constituent, or the Parliament. Mr Abbot now concedes he twice arranged pro-bono lawyers to assist Mr Sharples. His actions have a whiff of the old offence of maintenance and champerty, meddling in another’s law suit for his own advantage.

Webdiarist Jozef Imrich alerted me to a piece by Ken Parish, a law lecturer at the Northern Territory University who thinks Abbott could be in hot legal water. Here’s an extract from the piece on his weblog troppoarmadillo:

What interests me more about the “slush” fund revelation is whether Abbott, and others involved in its establishment (including allegedly Peter Costello’s father-in-law Peter Coleman), may have committed the tort of maintenance, which would allow Pauline Hanson to sue them for damages. (Mike Seccombe’s revelations about the Costello connection are at Howard knew of slush fund to target Hanson.) Here’s what Butterworths Halsbury’s Laws of Australia has to say about the tort of maintenance:

Maintenance consists of unjustifiable support or promotion of civil litigation in which the person has no direct or legitimate interest and may be accomplished by assisting either the plaintiff or the defendant in the proceedings without lawful justification. Champerty is an aggravated form of maintenance which consists of unlawfully maintaining an action, or a suit, upon an agreement to receive a share of any proceeds from the litigation. The torts of maintenance and champerty are actionable by a person who is caused special damage by the intermeddling. Both torts are of decreasing importance and have been abolished in some jurisdictions. Both wrongs also constituted a criminal offence.

The essential element of impropriety in an action for either maintenance or champerty is the officious intermeddling in, and supporting of, litigation in which the defendant has no legitimate interest. The intermeddling of the defendant must be shown to be intentional but there is no requirement of proof of malice or to show that the intermeddling was without reasonable and probable cause. The torts are applicable only to intermeddling in civil litigation and do not apply to assistance provided in criminal prosecutions, nor for intermeddling in administrative proceedings which are not contested litigation.

The most common way of committing maintenance is by providing financial assistance to a litigant, either by lending money to permit the bringing of the suit, or by bearing the full or partial costs of the litigation. It is not champerty for a solicitor to act for a client without means and to bear counsels fees and other disbursements where the solicitor has considered the case and has a bona fide belief in the clients cause of action or defence, and there has been no bargain with the client for a share of any proceeds from the litigation. However, champerty will lie where a legal practitioner engages in speculative litigation on an agreement to receive a proportion of any damages recovered.

It is a defence to the tort of maintenance or champerty that the person interfering in the litigation has an interest recognised by law in the proceedings. Where there is a genuine and legitimate common business interest between the maintainer and the maintained in the result of litigation, some activities in support of litigation may be justifiable. A legitimate common interest may also be found in a direct and substantial pecuniary interest in the outcome of litigation such as contracts of indemnity, or contracts of insurance. It must be shown that the activity which constitutes some intermeddling in, or support of, the litigation is a proper method of seeking to protect the common interest. It is possible, but exceptional, to be able to justify a champertous agreement on the basis of common interest.

Acts which are prima facie maintenance or champerty may be justified on a range of grounds which include the relationship of master and servant, kinship, compassion and charity. Where reliance is placed upon charity as justifying an intermeddling it must be shown that there is a genuine belief in the litigants impecuniosity. However, it is not necessary to show that the litigant is in fact destitute and otherwise incapable of engaging in litigation without assistance. Charity to assist the poor includes the situation where the litigant has assets which cannot be reached or used. The privilege will not afford a defence where the intermeddler has sought to promote his or her private interests and it is very difficult to justify champerty on the basis of such relationships of privilege.

***

Ken Parish comments:

As far as I can see on a very quick search, although the tort of maintenance has been abolished in several States, it still exists in Queensland. Moreover, it’s difficult to see Abbott and his fellow Sharples benefactors successfully making out any of the defences discussed above. Hanson may yet have the last laugh.

I actually have some practical professional experience with the tort of maintenance. Some years ago I acted for then NT Labor Opposition Leader Bob Collins in obtaining a Supreme Court injunction against the entire NT Cabinet after a Minister had been forced to reveal in the media that the Government had agreed to fund defamation litigation by former Chief Minister Ian Tuxworth against Bob Collins. Apparently the agreement to fund Tuxworth’s litigation had been made as part of a secret deal to get him to agree to resign quietly as Chief Minister in favour of another CLP nominee thought to have better electoral prospects. My morning in court as junior counsel was a personally memorable one. Not only was I suing the entire Cabinet on behalf of the Labor Opposition, but spectators in the public gallery included then right wing heavy and federal minister Graham Richardson. The argument got off to a seemingly disastrous start as soon as my senior counsel got to his feet and announced our appearances. The presiding judge, Justice John Nader, demanded to know in an imperious tone: “This isn’t another one of your political stunts is it, Mr McDonald and Mr Parish? I won’t have my court turned into a three ring political circus!”

Senior counsel then proved why his daily charge rate was much higher than mine. “Of course not, Your Honour, nothing could be further from the truth. This is simply a legal argument about whether an interlocutory injunction should be awarded on ordinary legal principles to restrain the commission of an ongoing and prima facie serious actionable civil wrong committed against a citizen of the Northern Territory.” It was, as Richo observed afterwards in tones of awe-struck admiration, one of the most brazen lies he’d ever heard in a courtroom. Justice Nader must have been impressed too. He gave us the injunction, and the entire case settled soon afterwards on terms not to be disclosed.

Ken’s readers have already posted some interesting thoughts on Hanson’s case against Abbott. Have a look – it’s worth it.

And are there any experts in political donation disclosure requirements? The Commonwealth Electoral Commission queried Abbott about letting the people know who donated to the ‘trust’ and he said he didn’t have to disclose donations because “the entire purpose of Australians for Honest Politics was to fund legal actions against One Nation”. The Commission dropped it – why? Later, the Commission acknowledged during a Senate committee hearing that this could amount to a giant loophole in disclosure of the donors to political parties. Set up a fund to destroy an opponent and it’s not a donation to the Liberal Party!!!

So what does the Commission’s legal opinion say, and did they ever get one? The Commission has shut its mouth. It will say nothing. The Commission must be independent, scrupulous and fearless because it is the steward of a fair electoral system, the foundation stone of a functioning democracy. So why won’t it talk to us?

If you go to electoralcommissioncontacts, at the bottom of the form is a feedback link. The Commission says: We welcome your feedback on our performance.

If you have any questions for Mr Abbott in his capacity as a Cabinet Minister, his email is tonyabbott. If the member for the Sydney North Shore seat of Warringah is your MP, his personal webpage is attonyabbottMP.